R. v. Anderson and Slater Date:, 2012 BCPC 496

Citation: R. v. Anderson and Slater Date: 20120820 2012 BCPC 0496 File No: 187735-2-C Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. DEAN JEFFERY ANDERSON and KATHLEEN ROSE SLATER ORAL RULING ON VOIR DIRE #3 OF THE HONOURABLE JUDGE J.W. JARDINE Counsel for the Crown: T. Buziak Counsel for the Defendant, D. Anderson : E. Doricic Counsel for the Defendant, K. Slater : K. Merrigan Place of Hearing: Surrey , B.C. Dates of Hearing: August 1, 2, 3, 7, 8, 9, 10, 13, 15, 16, 17, 2012

Date of Judgment: August 20, 2012 [ 1 ] THE COURT : We have adjourned to this Monday morning from last Friday afternoon for the purposes of the court giving reasons following Voir Dire #3, which deals with the admissibility of evidence in a s. 24(2) hearing, the court having previously found breaches in respect of Ms. Slater on August the 15th, and in respect of Mr. Anderson in Voir Dire #2 on August the 16th. [ 2 ] I will commence first with an outline of the structure that counsel or the reader can expect in these reasons. I will commence with an Introduction.

The next heading is Contextual Circumstances, Matters not in Issue, Admissions. The third is Search Warrant, Supplemental Reasons, with the sub-headings of Law, Facial Validity, and Subfacial Validity. I will turn next to the Analytical Framework and Applicable Law for s. 24(2). I will turn next to the Submissions of Counsel. I will commence first with Crown counsel, Mr. Buziak's submissions; I will then turn to Mr. Merrigan's submissions; followed by Mr. Doricic's submissions. The next main heading is the Application of s. 24(2) to the facts as it relates to, first, Ms. Slater; and, second, Mr. Anderson.

And then, lastly, I will deal with my Conclusions, having regard to the analytical framework of R. v. Grant . INTRODUCTION [ 3 ] This ruling encompasses my oral reasons given on Voir Dire #1, August 15, 2012, and on Voir Dire #2, August 16, 2012. I found in Voir Dire #1, breaches of s. 8, s. 9, s. 10(a), and s. 10(b). The police failed to adhere to establish constitutional standards in their actions of March 12, 2011, in the detention, arrest and confinement of Ms. Slater.

The search of her purse was also found to be unreasonable, having regard to the Waterfield Doctrine analysis. [ 4 ] I found in Voir Dire #2 that the warrant was not constitutionally sustainable. My oral reasons on Voir Dire #2 were given without reserve on August the 16th, in the interests of trial efficiency. In my reasons today I will more fully explore why I found the warrant to be invalid, as well as why I found that the Information to Obtain was incapable of meeting the test for issuance to be applied by a judicial officer on application.

The warrant and the Information to Obtain were, in my view, facially invalid on a close examination. Moreover, in the subfacial review, subfacial invalidity was also readily apparent at review. The evidence of Cst. Grewal and a paragraph-by-paragraph review of the Information to Obtain provided a clear basis for excision of many of the paragraphs. [ 5 ] Mr. Buziak vigorously defended the Information to Obtain and the Warrant throughout much of his submissions.

However, on paragraph-by-paragraph analysis, he made numerous concessions in accord with the proper presentation of the case from a prosecutor, that there were no paragraphs remaining which "could" have provided the issuing justice with sufficient credible evidence to find reasonable grounds to issue the warrant. The warrant was found, by me, to be invalid on its face. The Information to Obtain was fraught with problems and inaccuracies, and as a result, I found that there had been a s. 8 breach of the rights of Mr.

Anderson in that the search of the storage lockers by the police on March 13 and March 15, 2011, were found to be warrantless. CONTEXTUAL CIRCUMSTANCES, ADMISSIONS, MATTERS NOT IN ISSUE [ 6 ] Dean Jeffery Anderson and Kathleen Rose Slater are charged together with six counts on Information 187735-2-C. Counts 1 to 6 deal with two firearms which have been analyzed and identified. Counts 1, 3, and 5, are charges related to a prohibited firearm, a Taurus .40 calibre semi-automatic pistol, which was loaded with ten rounds of ammunition, but did not have a cartridge chambered.

It is common ground between both the Crown and the defence that that Taurus was found near the bottom of the white leather Chanel purse of Ms. Slater. [ 7 ] Counts 2, 4, and 6, are charges related to a restricted firearm, a Norinco .45 calibre semi-automatic pistol, which was loaded, containing five rounds of ammunition, but did not have a cartridge chambered. It was found right next to the wallet containing the identification of Ms.

Slater, as well as numerous cards and documents of hers, which was the subject of the search articulated and described in my factual outline of my reasons of August the 15th, 2012. [ 8 ] The Norinco, Exhibit E in Voir Dire #1, weighed 3.4 pounds. The Taurus, Exhibit F in Voir Dire #1, weighed 1.75 pounds. Both firearms are in working order, as is set out in the tabs at Exhibit C, dealing with each of them, which contain the Certificates of Analysis of the firearms examiner, Cst. Grosspietsch.

It is common ground, as between the Crown and the defence, that if the firearms are excluded from evidence, the case for the Crown will fail. Their admission in evidence is crucial to the Crown being able to prove the Crown's case as against each of Ms. Slater and Mr. Anderson. [ 9 ] Counts 7 to 21 charge Mr. Anderson with numerous counts related to the firearms found in locker B080.

Found during the police search, pursuant to the search warrant issued, which is Exhibit A in Voir Dire #2, based on the Information to Obtain, Exhibit B in Voir Dire #2, were three non-restricted rifles, one rifle, a Colt AR 15 .223 rifle, which is a restricted firearm, and one rifle, a Maadi Mist AKM, which is a prohibited firearm, together with assorted ammunition consistent with the calibre required for all of the above rifles. [ 10 ] Also found in the storage locker were five 12-gauge shotguns, one of which was a prohibited weapon without a serial number.

The shotguns were found in the locker in numerous bags and positions, and there were numerous rounds of shotgun cartridges consistent with the calibre and design to be used in these shotguns. [ 11 ] In addition, found in the locker, there were two handguns, restricted firearms; one was a Norinco Tokarev 7.62 mm calibre, and the other a Colt .357 magnum revolver.

There was also ammunition consistent with the calibre to be used in those handguns. [ 12 ] The contents of the two sets of admissions filed by counsel in the course of the s. 24(2) hearing, together with the photographs, some 207 in Exhibit A, taken during the course of the search of the locker, as well as the 64 enlarged photographs contained within Exhibit B, of the search of the locker B080, as well as the searches of locker B128 and the other locker, the exhibit flowcharts, and the certificates of analysis of the firearms examiner, Cst.

Grosspietsch, Exhibit D, lead to the inescapable conclusion that there were 12

firearms stored in locker B080. [13] The storage facility records, Exhibit D, have within them documents from which inferences could be drawn that the lockers andthe highly reliable real evidence within the lockers are evidence from which inferences could be drawn that those items were possessedby Mr. Anderson. That is so because of some other items found within boxes, but it is apparent from the documents that there is alsoanother named person, as well as another named person as a contact, in the documents.

So there is still a circumstantial case to beconsidered, given that we have not reached a position where the Crown has either closed its case or otherwise indicated to the court thatother evidential factors will not be brought to bear on the Crown's case as it relates to counts 7 to 21. [14] However, Mr. Buziak was candid that the combination of those pieces of circumstantial evidence found as a result of the searchwarrant, together with the documents found within the locker and the storage facility records, are crucial to the case for the Crown intrying to prove counts 7 through 21.

It is his view, which is shared by the defence, that if those items are excluded, the case for theCrown cannot succeed. On exclusion, pursuant to s. 24(2), the case for the Crown would fail. The surrounding facts, which furtherinform the context of this s. 24(2) hearing are contained within my reasons referred to earlier. [15] I will turn, next to the search warrant and my supplemental reasons.

SEARCH WARRANT: SUPPLEMENTAL REASONS Introduction [16] Search warrants are an essential investigative tool for investigators to search for and seize anything that has been or is suspectedto have been used during a criminal offence.

Police officers may search for and seize anything that there are reasonable grounds tobelieve is at a definable and describable place and which, (1) will afford evidence with respect to either the commission of the offence;(2) will provide information about where a person was believed to have committed an offence is; (3) is or was intended to be used for thepurpose of committing any offence against the person if the offence is or was one for which the person may be arrested without warrant,or is offence-related property. That is essentially a paraphrase of s. 487 of the Criminal Code. That

section has been in place fordecades. [17] These provisions are not new. The search warrant in the Criminal Code is a legislative investigative procedure, which enablesinvestigators to enter into a citizen's home, business, rented premise, leased storage locker, vehicles, any other place which is definableand describable, which is linked to crime, criminal activity, or offence-related property. [18] The Canadian Charter of Rights and Freedoms was proclaimed April the 17th, 1982.

It is trite to say that since then no otherarea of the criminal law has engendered (or continues to engender) as much litigation as case law from search and seizure. [19] The seminal case setting out the need for prior judicial authorization to empower police officers to enter onto private property orto enter into a definable place for the purposes of search or seizure, is the 1984 decision in Hunter et al v. Southam Inc. (SCC), 14 CCC (3d) 97 (Supreme Court of Canada) at pg 109.

Chief Justice Dickson (as he then was) said the following: A requirement of prior authorization, usually in the form of a valid warrant, has been a consistent prerequisite for a valid search andseizure both at common law and under most statutes. Such a requirement puts the onus on the state to demonstrate the superiority of itsinterest to that of the individual.

As such it accords with the apparent intention of the Charter to prefer, where feasible, the right of theindividual to be free from state interference to the interests of the state in advancing its purposes through such interference. [20] As to the role and the position of a person who should grant an authorization to search, he said, at page 110, the following: For such an authorization procedure to be meaningful it is necessary for the person authorizing the search to be able to assess theevidence as to whether that standard has been met, in an entirely neutral and impartial manner.

At common law the power to issue asearch warrant was reserved for a justice. [21] Hunter v. Southam has made it clear that the absence of neutral and impartial prior judicial authorization, a warrantless search,is prima facie a breach of s. 8. It is for the state to attempt to justify a warrantless search as being reasonable in scope, manner andreasonableness, in the circumstances of the particular case. I would refer the reader to the Waterfield Doctrine analysis in my reasons ofAugust the 15th. [22] A reasonable search was defined in Collins v. The Queen (1987), (SCC), 33 CCC (3d) 1 (S.C.C.) at p. 14.

Inthat case, a reasonable search was defined as: "A reasonable search is, one, authorized by law; two, the law itself is reasonable; and,three, the manner of search and/or seizure was reasonable in the context of the case." [23] The issuance of a search warrant involves the exercise of judicial discretion at the investigation stage of the criminal process. The jurisdiction of the particular judicial officer is dependent on the statutory powers set out in the legislation. The legal test has beendefined in Hunter v. Southam and Collins v. The Queen.

It is a balancing of the intention of the state to investigate and ferret out crime asagainst the conflicting public interests of civil liberties and the protection of individuals from interference with the enjoyment of theirproperty. In A.G. ( Nova Scotia) v. McIntyre (1982), (SCC), 65 CCC (2d) 129 (S.C.C.) at p.142, the court said: As is often the case in a free society there are at work two conflicting public interests. The one has to do with civil liberties and theprotection of the individual from interference with the enjoyment of his property.

There is a clear and important social value in avoidanceof arbitrary searches and unlawful seizures. The other, competing, interest lies in the effective detection and proof of crime and theprompt apprehension and conviction of offenders. Public protection, afforded by efficient and effective law enforcement, is enhanced

through the proper use of search warrants. (emphasis added) [24] We have now had the benefit of over 30 years of Charter scrutiny in the courts to assist in the analysis of search and seizureissues. Police and prosecution authorities have received direction and guidance from the courts delineating approved methods andappropriate procedures.

It is important during the process of an investigation that police officers focus on identifying not only when awarrant is necessary, but that they also acquire skills in the preparation of Informations to Obtain, and affidavits in support ofauthorizations or other investigative means.

Compliance with the formal and substantive requirements dictated by the Criminal Codeand subsequent judicial direction will cause the public to have increased respect for the police and public authorities and theinvestigation process within the rule of law. [25] Decisions in s. 8 matters either at issuance or at review are not made to police the police. See Collins v. The Queen, supra, atp. 16 (CCC (3d)). Breaches of s. 8 may range from deliberate non-compliance to technical failures, to failure to grasp the complexity ofthe legislation and the process.

Within that context, experience tells us that cases of deliberate police lawlessness are rare. Reviews of s.8 Charter applications disclose few cases where the police have deliberately chosen to circumvent or ignore lawful procedures. [26] It is frequently apparent, on review and a reading of the cases, a matter that the individual draft person was inexperienced,unaware, or careless. In many instances it becomes apparent, on a review of the evidence in a case-by-base analysis, that the juniorofficer has been assigned to the time-consuming, difficult, and less exciting preparation of the "paper" case.

Frequently, these officersare not knowledgeable about the proper procedures. Frequently, they have had no training at drafting affidavits. Frequently, theysimply follow a precedent on file in the detachment or within their

section files. Such ill-equipped affiants do not understand why theyare doing what they are doing, let alone how they might disclose the "source" of the information being presented. [27] In my view, there is little appreciation reflected in a review of the evidence in search cases that police officers view theInformation to Obtain as written testimony.

They are giving evidence in written form, but they do not seem to see it that way orunderstand that that is the case. [28] The corollary to the position of the police officer is that the legally defined role of the judicial officer, either at issuance or atreview, to balance legitimate investigative interests with the privacy interests of persons must also be defined. It is expected that therewill be an independent, neutral, impartial, judicial officer considering the material presented.

What limits, what terms or conditions onthe manner of search are appropriate, given the information in the Information to Obtain? What is the proper approach to screening outimproper information in an application? What is the role of the judicial officer at issuance? Scope and Purpose of Search [29] The scope of a search contemplated under s. 487 has been defined by the Supreme Court of Canada. I will not quote the wholeof the section. In CanadianOxy Chemicals Ltd. v.

Canada (Attorney General.) (1999), (SCC), 133 CCC (3d) 426(S.C.C.), the court interpreted the phrase "evidence with respect to the commission of an offence." At page 433, Mr.

Justice Major (as hethen was) said: On a plain reading, the phrase "evidence with respect to the commission of an offence" is a broad statement, encompassing all materialswhich might shed light on the circumstances of an event which appears to constitute an offence. [30] The natural and ordinary meaning of this phrase is that anything relevant or rationally connected to the incident underinvestigation, the parties involved, and their potential culpability, falls within the scope of the warrant.

The balancing nature of priorjudicial authorization and the need for safeguards to preserve a proper level of privacy, delineating the role of the issuing judicial officer,is also addressed in CanadianOxy at page 437. The court said: The broad powers contained in s. 487(1) do not authorize investigative fishing expeditions, nor do they diminish the proper privacyinterests of individuals or corporations. This is particularly true with respect to personnel records which may contain a great deal ofhighly personal information unrelated to the investigation at hand.

Judges and magistrates should continue to apply the standards andsafeguards which protect privacy from unjustified searches and seizures. [31] The fact that the tested issuance and the approach of the court should be to stand between the investigator and the citizen wassubsequently discussed in R. v. Plant (1993), (SCC), 84 CCC (3d) 203 (S.C.C.). Mr. Justice Sopinka, as he then was,set out a number of factors which define the balance between a state need to investigate and Charter protection of personal informationalprivacy.

He said, at page 213: Consideration of such factors as the nature of the information itself, the nature of the relationship between the party releasing theinformation and the party claiming its confidentiality, the place where the information was obtained, the manner in which it was obtained and the seriousness of the crime being investigated allows* for a balancing of the societal interests in protecting individualdignity, integrity and autonomy with effective law enforcement. It is, then, necessary to apply this contextual approach to the facts of thecase at bar.

Defining the Test for Issuance [32] It is sometimes informative to consider what something is not to understand the issue. We know that the test for issuance is not

beyond a reasonable doubt. To require such a test at the investigatory stage would not be reasonable. The legislation may require"reasonable grounds" or even a lesser test of "reasonable suspicion". We know from Hunter v. Southam, supra, that the test is more thanmere suspicion. Moreover, some would argue it is not the balance of probabilities. The test for issuance of a warrant at the investigatorystage of a criminal process has been described several different ways in appellate cases.

For the purposes of this case, I am of the viewthat the test has been articulated by the Supreme Court of Canada in the following ways: In Hunter v. Southam, at pages 114-115, thecourt said: …reasonable and probable grounds, established upon oath, to believe that an offence has been committed and that there is evidence to befound at the place of the search, constitutes the minimum standard… [33] The terms "reasonable grounds" and "probable cause" are identical. In R. v. Debot subsequently affirmed in the Supreme Courtof Canada by Madam Justice Wilson. G.

Arthur Martin said, in the Ontario Court of Appeal (1986) (ON CA), 30 CCC(3d) 207, at p. 219, that the burden was: …"reasonable ground to believe" or "probable cause" is not to be equated with proof beyond a reasonable doubt or a prima facie case.The standard to be met is one of reasonable probability. [34] Madam Justice Wilson, in the Supreme Court of Canada, as she then was, at (SCC), 52 CCC (3d) 193, said, atpage 13, that she agreed with that characterization. She added the phrase "reasonable belief" also approximates the requisite standards. [35] The Supreme Court of Canada addressed the test again in R. v.

Araujo 2000 SCR 65, at para. 20, where Mr. Justice LeBelrepeatedly used the terms "reasonable and probable grounds" and the words "probable grounds" as being the applicable test. There are anumber of cases that have reviewed that test in the Supreme Court of Canada. I will not refer to them except to provide notes of thecitations for those cases. R. v. Duong and Tran 2002 BCCA 43 , 2002 B.C.C.A. 43, para. 37; R. v. Lam 2002 BCCA 99, 2002 B.C.C.A. 99, paras. 7-8, Lambert J.A.; R. v.

Law 2002 BCCA 594 , 2002 B.C.C.A. 594, para. 7, Huddart J.A. [36] From the foregoing, it is my view they articulate the standard for issuance as a judicial officer in several different ways;however, the burden of proof requires an assessment of the whole of the evidence to determine the relevance of each individual piecewithin the Information to Obtain.

If there is a body of credibly-based evidence to establish reasonable grounds to believe an offence isbeing or has been committed and there is in a defined place a "thing" which falls within the "things" contemplated in s. 487, the warrantmay withstand constitutional scrutiny. It is a fact-driven decision dependent on the evidence to be resolved on a case-by-caseassessment. Precedents are, therefore, of little assistance, but they may provide guidance.

FACIAL VALIDITY The Offence [37] In dealing with the warrant, it is essential that the Information to Obtain set out a clear description of the offence beinginvestigated. The absence of any description will invalidate the warrant. The warrant need not set out the specific charge. A peaceofficer preparing a search warrant and Information to Obtain cannot be expected to provide drafting of a quality expected of pleadings attrial. It is a matter of the sufficiency of the description as opposed to perfection: see R. v.

Times Square Book Store (1985), (ON CA), 21 CCC (3d) 503, p. 512, per Justice Cory (as he then was) in the Ontario Court of Appeal. Identification and Description of Items to be Seized [38] It is the duty of the investigator to provide full, fair and frank disclosure in the Information to Obtain. The description of theitems sought must be sufficiently detailed to enable the investigator, the justice, and the person whose premises are to be searched, toknow what items will fall within the scope of the warrant.

A failure by the investigator or justice to put limits on a group or type ofrecords, documents or goods by reference to particular transactions or time periods or some other indicia of particularity may make thewarrant defective. If the description of the items to be searched for and seized provides a broad discretion to the executing investigatorsor leaves the relevance of the items to the discretion of the investigating peace officer, the judicial officer will have been seen to havedelegated his or her discretion to the searcher. That delegation is not constitutionally permissible.

It is for the justice to determine onreasonable grounds what items are to be searched for and seized: see R. v. Harris and Lighthouse Video Centres Ltd. (1987), (ON CA), 35 CCC (3d) 1 (Ont. CA). Evidence to Satisfy the Test for Issuance Source Information [39] The threshold determination for the issuance of a warrant is whether the issuing judge has before her credibly-based evidencesufficient to provide reasonable grounds on an assessment of the totality of the circumstance set out in the Information to Obtain.

Thequestion may be phrased as: Does the justice have sufficient objective factual information of a reliable nature to make a determinationthat there are reasonable grounds to issue the authorization to search? A review of the case law raises a number of points for discussionas to source information, informant information, the use of hearsay and the use of double hearsay.

The failure of the investigator to setout the source of information may make that part of the Information to Obtain defective. [40] In my view, it is incumbent upon the investigator in the Information to Obtain to disclose the source so that its weight can beassessed by the judicial officer. If the source is the note or report of other investigators, the informant should provide details outliningthe nature of the report, how the information was obtained, and why it should be considered credible and reliable.

If the source of theinformation is a written statement from the witness, then the witness should be identified and the details of the witness's involvement

provided. If the source was the handler of the confidential informant of unknown reliability, then that should be disclosed. Thecorollary, that of a paid informant of established reliability, should also be explained. There are a number of authorities which highlightthese points. [41] In In Re Restaurant Le Clémenceau Inc. v.

Drouin et al (1987), (SCC), 35 CCC (3d) 381 (SCC) pp. 383-4,the court said: In the case at bar the judge of the Court of the Sessions of the Peace had before him only an information in which the official stated thathe believed that the appellant had made false or misleading returns for August 1977, in that it had failed to include the sum of $299.20tax collected. He further asserted that this belief was reasonable and rested on an investigation he had undertaken, though he did not disclose its nature,and during which he had discovered certain facts.

In order to perform his duty of supervision, the judge had to determine whether thefacts on which the informant's belief was based were such that his belief was indeed reasonable. None of these facts are disclosed by theinformation. The judge then had a duty to ask for further information, which he elected not to do. In the case at bar, in view of what wasbefore the judge, he could not and in fact did not verify the reasonableness of the informant's belief and his approval of the warrantaccordingly at once gives rise to a writ of evocation. [42] In R. v. Pastro (1988), (SK CA), 42 CCC (3d) 485, (Sask.

C.A.) the court ruled on the sufficiency ofmaterials to justify the issuance of a warrant under the Narcotics Control Act, at pages 512-13: The justice must be satisfied that reasonable and probable grounds exist for such a belief. That authority cannot be delegated to theperson applying for the writ. It is not enough that the police officer swears he has reasonable and probable grounds for so believing thefacts stated.

There must be facts given on oath from which the justice can judicially satisfy himself that there are rational grounds for therequisite belief. [43] As can be determined from those two decisions, it is the statements of fact that are admissible, relevant and probative. Theofficer's conclusions or opinions are not admissible. A conclusory statement of opinion is of no evidential value. [44] In R. v. Christianson (1986), (SK KB), 26 CCC (3d) 391, pp. 396-7 (Sask. Q.B.) the court said as follows: However, with the exception of para. [4], the informant never stated the source of his information.

In my opinion, this should have beendone. If the informant has first-hand knowledge of the facts, it is a simple matter to so state. If the knowledge of the facts is second - or third-hand, then that should be stated, and particulars about the source should be set out in as much detail as is possible and practical. It mustbe remembered that the justice must determine from the facts presented whether reasonable grounds exist such as to justify a warrant. The justice must necessarily form an opinion as to whether the statement of facts are true and accurate.

This can hardly be done if thesource is not disclosed, as it precludes the justice from even considering the credibility or reliability of the source. The justice may have no question about the veracity of the informant. However, in the case of second-hand information, the veracity ofthe informant is not the prime issue. Assuming that the informant has communicated the information correctly, there still must be anexamination to determine whether the communicated information was true and accurate.

This involves an examination of the source vis-à-vis his means of knowledge, his reliability, and his veracity. [45] The court continued, at page 398: Yet at no time does he state an oath that he believes the alleged offence has been committed, the items will provide evidence, or that theyare located in the described places. Likewise, he does not state on oath that he actually and personally believes that the stated factswhich form the grounds for belief are true.

In the absence of a positive assertion by the informant that he believed the contents of the Information to be true, it was not open to thejustice to conclude that they were true. There simply was nothing upon which the justice could properly act and in purporting to do sohe exceeded his jurisdiction. The warrant was quashed.

Informants [46] Statements of belief by the informant or affiant or the source of information without sufficient factual disclosure to give to thejustice the means to determine the credibility or reliability of that information are not credible evidence admissible to prove the opinionadvanced. [47] In many of the appellate authorities it is common for the court to consider and accept hearsay evidence set out on anInformation to Obtain or an affidavit in support of an authorization.

Similarly, a common defect one might find is where an affiantprovides an account of an investigation by reference to actions undertaken by other investigators who dealt directly with the witnesses,victims, suspects, the crime scene and/or the search or seizure of other evidence. In the absence of evidence about the source of theinformation and a factual foundation to justify the objective facts, it is apparent that there is no credible, reliable evidential foundation toenable the issuing judge or justice to make factual findings or draw inferences.

In the absence of such an evidential reference, theInformation may not withstand Charter scrutiny, at least to the extent of that paragraph. [48] In R. v. Araujo 2000 SCR 65, at paras. 46 and 48, Justice LeBel, in strong language, articulated the standards expected. Hesaid: Ideally, an affidavit should be not only full and frank but also clear and concise.

It need not include every minute detail of the policeinvestigation over a number of months and even of years. (emphasis added) [49] And he continued: Finally, while there is no legal requirement for it, those gathering affidavit material should give consideration to obtaining affidavitsdirectly from those with the best firsthand knowledge of the facts set out therein, like the police officers carrying on the criminalinvestigation or handling the informers. This would strengthen the material by making it more reliable.

In the present case, it might haveprevented this case from turning into the mess it is now, still in appeal, after years of litigation on preliminary matters, without any finaljudgment on the guilt or innocence of the appellants. [50] In R. v. Debot, supra, in the Ontario Court of Appeal, in Collins v. The Queen, in R. v. Garofoli (1990), (SCC),60 CCC (3d) 161 (S.C.C.) p. 191, and as set out in Araujo, hearsay evidence is accepted and approved as long as the underlyingcircumstances are disclosed such that the issuing judicial officer is able to determine the facts for him or herself.

The central question toask is whether the evidence tendered is reliable. In Araujo, at page 49, the point is made by Justice LeBel: This brings me to the adverse credibility finding against the affiant in the case at bar. Practically speaking, these issues and much of theresulting litigation could have been largely avoided if the police had taken the simple step of having each of the handlers sign anaffidavit on those matters within his or her particular knowledge.

This would almost certainly have ensured a more careful verification ofthe facts sworn in the affidavit material, potentially avoiding some of the needless errors that the affidavit ended up containing, andwould also have made the application for an authorization less tied to the credibility of the one officer who ultimately attested toeverything in it. [51] The test with respect to a confidential informant was articulated in Debot in the Ontario Court of Appeal, supra, pp. 218-19(CCC (3d)): On an application for a search warrant, the informant must set out in the information the grounds for his or her belief in order that thejustice may satisfy himself or herself that there are reasonable grounds for believing what is alleged: see R. v.

Noble, supra, at p. 161.Consequently, a mere statement by the informant that he or she was told by a reliable informer that a certain person is carrying on acriminal activity or that drugs would be found at a certain place would be an insufficient basis for the granting of the warrant. Theunder​lying circumstances disclosed by the informer for his or her conclusion must be set out, thus enabling the justice to satisfy himselfor herself that there are reasonable grounds for believing what is alleged.

I am of the view that such a mere conclusory statement madeby an informer to a police officer would not constitute reasonable grounds for conducting a warrantless search or for making an arrestwithout warrant.

Highly relevant to whether information supplied by an informer constitutes reasonable grounds to justify a warrantlesssearch or an arrest without warrant are whether the informer's "tip" contains sufficient detail to ensure it is based on more than mererumour or gossip, whether the informer discloses his or her source or means of knowledge and whether there are any indicia of his or herrelia​bility, such as the supplying of reliable information in the past or confirmation of part of his or her story by police surveillance. [52] A number of propositions were advanced by Sopinka J. in Garofoli at page 191: (

i) Hearsay statements of an informant can provide reasonable and probable grounds to justify a search. However, evidence of a tip froman informer, by itself, is insufficient to establish reasonable and probable grounds. (ii) The reliability of the tip is to be assessed by recourse to 'the totality of the circumstances'. There is no formulaic test as to what thisentails. Rather, the court must look to a variety of factors, including: (

a) The degree of detail in the 'tip';

(

b) The informer's source of knowledge; (

c) Indicia of the informer's reliability such as past performance or confirmation from other investigative sources. (iii) The results of the search cannot, ex post facto, provide evidence of reliability of the information. [53] It is apparent, from those authorities and the guidelines set out in Garofoli, Debot and Araujo, that hearsay evidence, not onlyfirst-hand hearsay, but also second-hand hearsay, may be found to be sufficiently credible and reliable. It is for the issuing justice toweight the evidence and to determine whether there is sufficient evidence to grant the warrant.

The question may be stated as: Havingregard to the totality of the circumstances before the issuing judicial officer, is the source of the information identified such that therecan be a finding that there is sufficient credible evidence on oath to enable the issuing justice to make a determination of credibility? [54] There are a number of authorities which create an outline or a judicially created subset of review guidelines on facial validity. They include, amongst others, R. v. Morris (1998), 134 CCC (3d) 540 (NS CA); R. v.

Bisson (1994), 87 CCC (3d) 44 (QCA); R. v.Monroe (1997), (BC CA), 8 CR (5th) 324 (BCCA); R. v. Dellapenna (1995), 62 BCAC 33 (BCCA); and, as well, inR. v. Sanchez (1994), (ON SC), 93 CCC (3d) 357 (OSC), an outline created by Mr. Justice Hill on a review of someguidelines. From those authorities, a judicial officer about to issue a search warrant might consider reviewing the documentation and thetest for issuance having regard to the following: 1. Examine the process of application to determine if there were errors in process or jurisdiction. 2. Examine the warrant for facial validity. 3.

Examine the Information to Obtain for errors. 4. Determine whether the errors in the Information to Obtain are substantial defects. 5. If the errors are substantial defects, are they explained by other evidence contained in the Information to Obtain? 6. If the offending terms or paragraphs are found not to be confirmed or corroborated, should they be excised? 7.

If the offending terms or paragraphs are excised, does there remain reasonable grounds to issue the warrant at the time ofissuance? [55] Are there errors in the materials which disclose unlawful investigative techniques which led the facts stated in the Informationto Obtain the search warrant. If so, those facts may be excised at the time of issuance (see R. v.

Grant, (SCC), [1993] 3S.C.R. 223 (S.C.C.)) excise those materials which merit excision and then ask: On the totality of the circumstances in the remainingmaterials, is there sufficient credible evidence on oath to enable me to issue the warrant? [56] Having regard to those tests, I turn, next, to the facial validity of Exhibit B and Exhibit A in the Voir Dire. I will keep thoseauthorities and comments in mind as I turn to a consideration of the facial validity of Exhibit C in the Voir Dire, the Information toObtain, and Exhibit B in the Voir Dire, the warrant.

I think I might have misspoke earlier when I described the Information to Obtain asExhibit B, a simple factor of my not being able to read my own writing, and it is pretty bad when you cannot distinguish between a B anda C. However, during the course of submissions, Mr. Buziak very fairly went through Exhibit C paragraph by paragraph. I propose todo that, because it informs my subsequent ruling on the issue relating to s. 24(2) on the first arm of the Grant (S.C.C.) analysis andframework and on the balancing factor.

It is, of course, not an issue with respect to the degree of intrusiveness of the search of thestorage locker. [57] I propose to take the document and to review it, having regard to the materials to which I have already referred the reader in thecourse of my outline of the law relating to search warrants. I will begin with paragraph 2 of Exhibit C. In that paragraph, Cst. Grewalsaid: I have personal knowledge of the matters and facts to which I depose in this Information to Obtain, save and except where stated to be oninformation and belief. I believe the facts and matters within my personal knowledge to be true.

As to the facts based on informationand belief, I believe them to be true. [58] When one examines paragraphs 7 through 14, Cst. Grewal has presented this

summary of investigation as fact, yet he was notpresent. It is a

summary in which he has articulated these observations as if they were fact. What is particularly significant is paragraph11. In paragraph 11, Cst. Grewal said the following: The female, Slater, was seated in the middle of the rear passenger seat. Slater exited the vehicle and while conducting an officer safetysearch of Slater, police opened her purse and in plain view two firearms were located in her handbag, specifically, loaded Norinco .45calibre and Taurus .40 calibre handguns.

[ 59 ] That is stated as a fact. It was not within his personal knowledge. He does not say, "I observed it," he does not say, "I have received information from Cpl. Orregaard and verily believe it to be true that that occurred." He stated it baldly as a fact. 14: While searching the rest of the contents of Slater's purse, police found a receipt to two storage lockers and a storage parking stall that was paid on March 7, 2011, by Anderson. [ 60 ] He asserted that as a fact in his Information to Obtain. Now, on a facial validity basis, those two clauses are admissible.

On a subfacial validity basis, there are considerations that come into play. At clauses 15, 16, 17, 18, 19, 20-25, 26, and 27, there is an outline of what I will call police interaction and police contents with respect to each of the individuals referred to in those paragraphs up to 27. We have Anderson at 15; we have Mr. Costain at 16, 17, 18, 19, 20-25; at 26 we have Ms. Slater; and 27 we have Ms. Slater, and it then turns to Mr. Pruden. Now, what is apparent, from R. v.

Debot is that criminal history has some relevancy, if it is relevant to some other issue in the Information to Obtain that marginal relevancy permits that those portions of the document are admissible on a facial validity perspective. [ 61 ] What is also apparent in a review of those clauses, particularly clauses 16, 17, 20, 21, 22, 23, 24, and 25, the only sourcing is in respect of the statement of Aiden Kyne in paragraph 24. In paragraph 24 there is a reference to an audio-recorded witness statement. What is significant in the

preamble for paragraph 24 is that Officer Grewal used the following language: I read the report of Cst. Chris Marion and learned the following. [ 62 ] He doesn't say who told it to him. He doesn't say that the statement was sworn. He doesn't say, "I have been informed by a person or persons and verily believe it to be true that." He just simply states, "I read the report of Cst. Chris Marion and learned the following." [ 63 ] In my view, that is not proper sourcing of materials.

In respect of those paragraphs, such as 16, 17, 20, 21, 22, 23, 24, 25, I am satisfied that there is no factual foundation which would have enabled the issuing justice to determine the accuracy of that information on oath such that it could have provided, at the time of the issuance of the warrant, a body of credibly-based evidence upon which the justice of the peace could consider those sections. I would, accordingly, excise each of them from the analysis of the warrant on a facial validity determination. [ 64 ] There are portions of paragraph 15 which relate to previous convictions for Mr.

Anderson, which are relevant to the issue of possession of a firearm, because that is the offence which is being investigated, according to Cst. Grewal.

He said that the offence date was March the 12th, 2011, Surrey, B.C., unauthorized possession of a firearm, and he is seeking recovery of the following things, namely, "any evidence that will support a charge of unauthorized possession of a firearm, contrary to s. 91(1) of the Criminal Code of Canada , including all firearms, firearms licences, ammunition, magazines, any typed, written or computer-generated documents related to the purchase, storage or sale of firearms, and any typed, written or computer-generated documents related to possession of the storage units and the contents." [ 65 ] I will deal with the contents of that paragraph in the context of the admissible portions of each of the paragraphs relating to the fact that there were no firearms listed as registered to any of the persons: Anderson, Costain, Pruden, or Slater. [ 66 ] There are conclusory statements of opinion, as well, which need to be edited.

Those conclusory statements of opinion include 15(c), 16(

h) and (i), paragraph 18, paragraph 27, paragraph 32(b)(ii), (d)(

i) and (d)(1)(iii), where he said, "This is consistent with the report of Cst. McWilliams as stated above, that on October 4, 2010, Wyatt Costain assaulted people who owed him money." [ 67 ] I am also mindful of the fact that he has provided a

summary of the Gang Task Force investigation and the Report to Crown Counsel of Cpl. Orregaard. There is no reference to sworn documents. He said, "I read the Report to Crown Counsel of Cpl. Orregaard and learned, in part, the following." He does not say, "He told me the following and I verily believe it to be true," and, accordingly, that paragraph is not admissible. [ 68 ] Similarly, the report of Cpl. Heisler is not admissible, paragraph 35. He is in a position to state, paragraph 36(

a) through (e), although (

e) is a conclusory statement of opinion from Cst. Munn, and (e)(

i) and (e)(ii) are conclusory statements of opinion and argument from Cst. Grewal, which are not admissible. [ 69 ] Last, and not least, from a facial validity perspective, I am of the view that the materials contained within clauses 37, 38, and 39, are reflective of searches conducted without warrant through the assistance of a security person at the storage locker premises of Econo Central City Storage. [ 70 ] And I will deal, next, with what we will call the subfacial invalidity, and then I will come back to facial validity and subfacial validity in terms of my findings and my analysis.

SUBFACIAL VALIDITY [ 71 ] On the subfacial validity analysis, it was clear from the cross-examination of Cst. Grewal that he had very little knowledge about the preparation of an Information to Obtain, which is referable as Appendix A, Exhibit C, in Voir Dire #2.

He had no knowledge of his responsibilities with respect to paragraph 2, and I am satisfied that on an assessment of the authorities to which I have referred, particularly on the basis of In Re Restaurant Le Clémenceau Inc. that there is, at the conclusion of the subfacial validity analysis, a situation where the Information to Obtain has been substantially excised to the point where there is not remaining any foundation by way

of material fact to justify the issuance of the document. [ 72 ] It was apparent that Cst. Grewal did not, with respect to the matter, source the notes or reports of other investigators such that he provided details outlining the nature of the report, how the information was obtained within the report, and why the report should be considered credible and reliable, nor did he, in any way, indicate whether or not the report was in the form of narrative from the opinion of the officer. In none of the circumstances, except for Cst.

Munn, did he actually speak to the officer for the purposes of obtaining information. [ 73 ] In such a circumstance, since we have one written statement from a witness, we have an audio-recorded statement, which is summarized by a police officer, then there should be evidence of the details of the witness's involvement: Who is the witness? How was the witness able to report that information? How did the witness come into knowledge of that information?

All of that should have been reported to the judicial justice for the purposes of enabling him or her to have determined the validity of the information provided in the Information to Obtain. [ 74 ] As to facial validity, I would find the following: As to style and form; one, any factual assertion by the affiant within the four corners of the affidavit must be sourced to some investigative resource.

It is insufficient for the affiant to simply state conclusions, opinions, beliefs, and facts, without providing the issuing justice with the source or origin of the information leading to such conclusions or opinion of facts. The credibility and reliability of the assertions of fact by personal observation or of information or belief where hearsay are inextricably bound to the investigative resources available: see R. v. Debot .

The style and form of the Information to Obtain must not depart from the obligation on the applicant in an ex parte application to provide a fair, balanced, and accurate recount of the underlying factual circumstances. On that we have the considerations in R. v. Araujo; R. v. Morelli; and R. v. Morris .

I will deal with those cases in a moment. [ 75 ] On the subfacial analysis of this particular Information to Obtain, it is my view that there are substantial errors such that on a subfacial basis the officer's conduct in the preparation of the materials becomes one of reckless, careless, failure to appreciate the nature of the process in which he was engaged. I am particularly of the view that the contents of paragraph 11 were indicative of a careless regard for the truth. There was no evidence in the context of the Voir Dire before me that when Ms.

Slater exited the vehicle officers conducted an immediate safety search of Ms. Slater. At that time, because paragraph 11 can only be interpreted that the officers, upon Ms. Slater exiting the vehicle, conducted an officer safety search of her and police opened her purse and in plain view two firearms were located in her handbag. That clause was clearly wrong. It constituted misleading evidence and would have led the issuing justice to believe that Ms. Slater had, in her purse, in plain view, two firearms. That was not the case.

One of the firearms was plainly in view upon opening the zipper; the second was underneath items in the purse. Moreover, he also asserted, in clause 14, that police found a receipt to two storage lockers. That is also incorrect. It is seriously wrong. There was a receipt for one locker, B128. [ 76 ] In addition, on a subfacial analysis perspective, I accept the submissions of Mr. Doricic that there are a series of failures by Cst. Grewal to adequately, in full, fair and frank disclosure, state the truth with respect to the information contained within the police reports.

I do not know whether or not, as a result of his cross-examination, he was aware of the true state of affairs, but it is apparent that with respect to the preparation of this Information to Obtain, what he did was sit at a computer terminal and review case reports. He did, then, not go and speak to the officers or further investigate so as to understand the accuracy of the information obtained within the reports.

He did not in any way confirm or corroborate in any way the information which he had been provided. [ 77 ] Therefore, with respect to the reasoning, at amplification, and the materials contained, he led the judicial justice to believe a number of things that were incorrect. For instance, and I believe I am going to deal with only six of these, at 21(

e) he said, with respect to Mr. Costain, that he was uncooperative with police in providing a misleading victim statement. Specifically, Costain stated that he was shot by two males at a Skytrain station. However, inquiries of all nearby Skytrain stations failed to locate any evidence of a shooting. There is an apparent conflict with the perspective of the officer, because Mr. Costain had sustained a gunshot wound to his left thigh that went straight through. He provided a statement to police. Whether or not police accepted the veracity of that statement is another issue.

The content of the report, in that regard, was an opinion phrased by Grewal, which had to have been misleading for the judicial justice of the peace. [ 78 ] With respect to paragraph 23(e), he left the terms that the persons owed Costain approximately $1,000 without full explanation for the fact that in respect of paragraph number 23, Costain was owed the money for the sale of a truck, some $700, and the sale of a dog, some $300.

The paragraph was, therefore, misleading to the judicial justice. [ 79 ] In paragraph 24, although it is not sourced, there is considerable information in the statement of Kyne that would seem to provide that Mr. Costain had ready access to the weapons. There is nothing in that paragraph that in any way provides a foundation that Mr. Costain was selling firearms, yet when one looks at paragraph 43(g), Cst. Grewal extrapolates from that information the following. He said: On September the 21st, 2010, Kyne provided a statement to Cst.

Marion in which he stated that he was aware that Costain was attempting to sell stolen firearms. Gerard Costain (the brother of Wyatt Costain) mentioned that his brother Costain had access to approximately ten AR 15s that were obtained from a break and enter to a gun store on River Road in either Delta or Surrey. [ 80 ] There was no information whatsoever in the Kyne statement that Costain was attempting to sell stolen firearms. That, therefore, was directly wrong and misleading. [ 81 ] In addition, in paragraph 34, he made reference to the contents of Ms. Slater's purse.

In respect of the contents, there is no reference to the actual contents of the receipt, and there is little reference in the materials to Mr. Anderson; however, there is evidence of association to Mr. Anderson, although the three cell phones are not indicated as being from the purse in terms of the search and seizure from Det. Cst. Kussat. [ 82 ] And then last, and not least, with respect to what I will call the misleading materials, there is nothing in the documents, at all, that would seem to indicate 36(e)(

i) and 36(e)(ii). He said:

I am aware that it is common for drug dealers and gangsters to use their girlfriends to hold drugs/paraphernalia and firearms for them in their purses. I believe that this is because they believe that it would be less likely for police to search the females. [ 83 ] There is no evidence of that in the Information to Obtain, nor was there any information provided to him by Cpl. Orregaard, any other Gang Task Force member nor does he source that in any way. It is clearly excisable. It is argument and advocacy by someone who is supposed to be providing evidence. Similarly, 36(3)(ii) contains a similar comment.

He said: I believe that Anderson used his girlfriend, Slater's, purse to hide the firearms within, knowing that he and Costain had outstanding arrest warrants and they would most definitely be searched upon their arrest. There is no factual foundation to that assertion, whatsoever, other than the proximity between Ms. Slater, Mr. Anderson, and Mr.

Costain. [ 84 ] In sum, in terms of the standard of review and the materials, I am with the view that subfacially there has been a complete failure on the behalf of the officer to meet the standards expected of a police officer in the preparation of an Information to Obtain. Therefore, with respect to the facial validity, I make the following finding. [ 85 ] The Information to Obtain did not contain any proven facts or informant information that the locker, which was to be searched, contained firearms or contraband.

Inferences may only be drawn from proven facts or properly sourced information which could have provided the issuing judicial officer with the means to draw an inference that the locker contained such items. On its face, the Information to Obtain did not contain information from which such a finding could be made. The only paragraphs which could have provided the foundation for such an inference were the conclusory statements of belief in the clauses to which I've referred in 43(f)(i), (g), (k), and (k)(i), in which Cst. Grewal argued for the issuance of the search warrant.

These conclusory statements of belief did not provide the issuing justice with credibly-based admissible evidence on which such findings could be made. [ 86 ] In the absence of admissible evidence from which the issuing justice could draw those inferences, these statements of belief were insufficient to meet the standard of constitutional scrutiny. Those standards are not new. I have already outlined the law and the legal standards have been settled for many years, in particular by the analysis contained in the cases cited in above, in particular Debot and Garofoli . [ 87 ] It is correct, as was argued by Mr.

Buziak, that Mr. Anderson had been found in the proximity of two handguns, which were found in the purse of Ms. Slater, his girlfriend. In that purse was also found a receipt for a storage locker rented by Mr. Anderson. There was no evidence that the guns came from the storage locker. There was no evidence what was in the locker at all. The police wanted to search the locker. There were no grounds in the Information to Obtain to reasonably enable a finding of reasonable suspicion that any firearms or contraband were secreted there.

At best, it was an educated guess by investigators there might be such items there, because of their intelligence about Mr. Anderson. Those beliefs, without any supporting facts, did not provide a constitutionally sufficient evidential foundation on which the Information to Obtain could have issued facially or subfacially. The reasoning is that amplification also informs the issue of s. 24(2) and that is the reason why I have been reciting this review of the search warrant as Supplemental Reasons. [ 88 ] It is apparent, from the amplification, that the subjective belief of Cst.

Grewal followed this line of reasoning by him: 1. Mr. Anderson is a police target; 2. Mr. Anderson is one of B.C.'s most wanted; 3. Mr. Anderson is a criminal; 4. Mr. Anderson has a girlfriend; 5. Mr. Anderson's girlfriend was found with two handguns in her purse; 6. Mr. Anderson was arrested in company with Mr. Costain and Mr. Anderson's girlfriend, Ms. Slater; 7. Anderson had a receipt in his girlfriend's purse for a storage locker. [ 89 ] Mr. Costain, an associate of Mr. Anderson, had access to firearms months before.

We want to look in the storage locker because we believe there will be contraband of some sort there. There might be firearms in the storage locker. The subjective belief was that since Mr. Anderson and Mr. Costain had outstanding warrants and they were essentially, in the colloquial, "on the lam without fixed addresses," that the storage locker would be a good place to hide such items as their weapons and firearms. [ 90 ] The problem with respect to the reasoning on amplification in the subfacial validity is that the subjective beliefs of Cst.

Grewal became intertwined with the misleading statements and the numerous inaccuracies in the Information to Obtain, which he created, such that there was a false impression in the Information to Obtain, which had the effect of misleading the issuing justice. It is not, in my view, having regard to the whole of the evidence before me, apparent that Cst. Grewal was deliberately disregarding his obligations to make full, fair and frank disclosure, or that he was deliberately setting out to mislead the judicial justice of the peace.

This was, in my view, a circumstance where a relatively inexperienced officer, who volunteered to prepare the Information to Obtain, was in a circumstance where he did not understand the process. He was a junior officer who was unaware and careless of his responsibilities. What were those responsibilities?

[91] In Araujo, at paragraphs 45-49, Mr. Justice LeBel made it clear what the responsibility was. The police officer is in a positionof setting out: …the facts fully and frankly for the authorizing judge in order that he or she can make an assessment of whether these rise to thestandard required in the legal test for the authorization. [92] Paragraphs 46, 47: A corollary to the requirement of an affidavit being full and frank is that it should never attempt to trick its readers.

At best, the use ofboiler-plate language adds extra verbiage and seldom anything of meaning; at worst, it has the potential to trick the reader into thinkingthat the affidavit means something that it does not. Although the use of boiler-plate language will not automatically prevent a judge fromissuing an authorization (there is, after all, no formal legal requirement to avoid it), I cannot stress enough that judges should deplore it.There is nothing wrong – and much right– with an affidavit that sets out the facts truthfully, fully, and plainly.

Counsel and policeofficers submitting materials to obtain wiretapping authorizations should not allow themselves to be led into the temptation of misleadingthe authorizing judge, either by the language used or strategic omissions. [93] I would add to paragraph 47, which I have just quoted, that they should not be adding strategic arguments or beliefs.

(48) Finally, while there is no legal requirement for it, those gathering affidavit material should give consideration to obtaining affidavitsdirectly from those with the best firsthand knowledge of the facts set out therein, like the police officers carrying on the criminalinvestigation or handling the informers. This would strengthen the material by making it more reliable. In the present case, it might haveprevented this case from turning into the mess it is now, still in appeal, after years of litigation on preliminary matters, without any finaljudgment on the guilt or innocence of the appellants. [94] And then in paragraph 49 he told them what they should consider doing. He said:

(49) This brings me to the adverse credibility finding against the affiant in the case at bar. Practically speaking, these issues and much ofthe resulting litigation could have been largely avoided if the police had taken the simple step of having each of the handlers sign anaffidavit on those matters within his or her particular knowledge.

This would almost certainly have ensured a more careful verification ofthe facts sworn in the affidavit material, potentially avoiding some of the needless errors that the affidavit ended up containing, andwould also have made the application for an authorization less tied to the credibility of the one officer who ultimately attested toeverything in it. [95] I am going to deal with a passage from Morris and a passage from Morelli and then we will break for lunch.

In Morris, Mr.Justice Cromwell (as he then was in the Nova Scotia Court of Appeal, he is now in the Supreme Court of Canada), Morris is at 1998NSCA 229 , [1998] N.S.J. 492, and I am dealing with paragraphs 34 through to 35. I pause to note that he started at paragraph29, where he talked about the key elements of what must be shown to establish credibly-based probability. He dealt with a lot ofinformation related to information and belief and sworn evidence, and at paragraph 33 he really developed the point that is significant forthe 24(2) analysis.

He said: The prior authorization process, however, is quite fragile. When the police attend before a Justice of the Peace, no one, for obviousreasons, is there as an advocate of the interests of the target of the search. The justice of the peace will usually not be a lawyer or a judge.The circumstances under which the warrant is sought may be urgent and the process, of necessity, quite informal.

This simplydemonstrates that the process depends on two things: the honesty, good faith and diligence of the police when they gather and presenttheir grounds for consideration and the independence and caution of the Justice of the Peace deciding whether to authorize the proposedsearch. [96] And when we come back from lunch I will deal with the Justice of the Peace in that context. In Morelli in the Supreme Courtof Canada, Mr. Justice Fish, at paragraph 58, outlined his perspective as follows, and he is talking about a failure to provide details.

Hesaid: In failing to provide these details, the informant failed to respect his obligation as a police officer to make full and frank disclosure to thejustice. When seeking an ex parte authorization such as a search warrant, a police officer - indeed, any informant - must be particularlycareful not to "pick and choose" among the relevant facts in order to achieve the desired outcome. The informant's obligation is to presentall material facts, favourable or not. Concision, a laudable objective, may be achieved by omitting irrelevant or insignificant details, butnot by material non-disclosure.

This means that an attesting officer must avoid incomplete recitations of known facts, taking care not toinvite an inference that would not be drawn or a conclusion that would not be reached if the omitted facts were disclosed. [97] For instance, the information with respect to Costain and his former girlfriend and what his lifestyle was, what hiscircumstances were. Another issue of what we will call misleading information in Grewal's presentation in the Information to Obtain. [98] He then talked, at paragraphs 59 and 60, of the amplification and what transpires there. And he assisted us, at para. 73, with the

portions of the Information to Obtain that deal with types of offenders and criminal activity. He said: The main difficulty with these generalizations about certain "types of offenders" is that they are entirely devoid of meaningful factual support. The ITO contains no evidentiary material in this regard, even anecdotal, apart from the bald assertion of the two police officers. Furthermore, there is virtually nothing to describe, let alone establish, the expertise of the officers to whom the claims are attributed.

The only information provided in the ITO consists in the officers' names, positions, and places of work.

This is surely an insufficient evidentiary basis to enable a justice of the peace, hearing an application ex parte , to determine that the generalization is sufficiently credible or reliable to form the basis for a finding of reasonable and probable grounds. [ 99 ] And then he continued, at paragraphs 98 to 103, to deal with the measurement and the qualitative analysis of what the officer should do in the preparation of the Information to Obtain. [ 100 ] Having those cases in mind, I am of the view that with respect to the actions of Cst.

Grewal, that the materials which were presented in Exhibit C did not contain admissible evidence upon which the issuing justice could have come to the conclusion that there was in the storage locker anything related to a crime or criminal activity. There was no positive information from an informant. There were no circumstantial facts on which an inference could be drawn that the storage locker contained firearms or contraband. [ 101 ] There is another issue with respect to the matter, and that is that it is clear that Cst. Grewal accepted the perspective that Mr.

Anderson was in possession of the two firearms in Ms. Slater's purse. That was clearly not an inference open to be drawn on the material facts known to Cst. Grewal at the time of his preparation of the Information to Obtain. That may have been the theory of the police, and it may still be the theory of the Crown, given the joint charge of Mr. Anderson and Ms.

Slater, but on the evidence before me and on the evidence tendered in the Information to Obtain and subsequently amplified on the Information to Obtain amplification portion of Voir Dire #2, I am satisfied that there is no evidence upon which an issuing justice could have made such a finding. [ 102 ] For those reasons, I found that there was a s. 8 breach and that the warrant could not be sustained. [ 103 ] Before I leave the Supplemental Reasons with respect to the search warrant, as I indicated this morning, there is one more delicate aspect to the analysis of the evidence, but first I will summarize my findings with respect to Cst.

Grewal. In my view, on review, he was an officer who was focused on getting the warrant. His credibility is called into question not so much because of what he said as opposed to what was not said by him. [ 104 ] From a competence perspective there is, in the form and substance of the materials presented, a significant degree of a lack of disregard for the established constitutional standards and constitutional obligations.

The numerous inaccuracies, the misstating of evidence, the failure to source the material properly, the failure to disclose material information, an inability to advise where in the reports he obtained knowledge he had obtained, as well as the misstatements and misogyny of wording in the reports leads one to the inescapable conclusion that he is unaware of the obligations and duties that he has to make full, fair and frank disclosure. He described, for instance, a wad of cash as being large stacks of dollars. He made reference to Costain misleading the police.

He made reference to Costain moving from place to place, according to information from mutual friends through Costain's old girlfriend, Ms. Hooper. [ 105 ] In

summary, he was focused on getting the warrant. He was not focused on the process of preparing written testimony which would enable the justice of the peace to have the means of determining the credibility or reliability of the evidence. As I said on the 16th, I saw no evidence of an intentional, planned, deliberate, wilful intention to mislead the judicial justice of the peace, but his work was significantly beneath the appropriate constitutional standards to be expected of a peace officer seeking a search warrant. [ 106 ] The role of the judicial justice.

In the context of my analysis, one more delicate factor, which is significant, arises from a review of Exhibit B and Exhibit C. In my view, on the authority of Le Clémenceau, Pastro , and Christianson , careful attention to the impugned paragraphs would have caused the issuing judicial officer to question the credibility of the informant as to the weight to be attached to his assertions in the Information to Obtain. When I use the term "informant" here, I am talking about Cst. Grewal.

In the absence of evidence about the source of information and the factual foundation to justify the objective facts, it is difficult to understand how this warrant was issued. Once one takes out the conclusory statements of opinion, the arguments of belief, and excises the material which was not properly sourced by Cst. Grewal, the Information to Obtain would not provide sufficient material to link Mr.

Anderson to any firearms, and certainly not to any firearms or contraband in storage locker number 128. [ 107 ] In the result, it is my view that the issuing justice should not have exercised the discretion in issuing judicial officers to have granted this warrant on the remainder of the Information to Obtain once those paragraphs were excised. Moreover, there is, in the language of the warrant, delegation to the searchers of the decision what to search for and seize. There were no particulars of the "things" grounded to be searched for and seized in the Information to Obtain.

The language of the order, itself, provides that the persons executing the warrant can seize "any evidence" and, therefore, it is vague, overly broad, and in the nature of an overly broad and unrestrained basket clause. It would appear, from the language of the Order, itself, that the issuing justice did not consider appropriate limiting terms. [ 108 ] That leaves this court in the delicate position of attempting to determine whether the issuing officer assessed the evidence with those factors in mind.

Since his role was to be an independent, neutral, impartial, assessor of the weight to be attached and whether there was credibly based evidence to provide reasonable grounds to issue the warrant, this court becomes engaged in whether or not that role was properly fulfilled. It is in that context that I will turn, next to s. 24(2) and to the applicable law in the analytical framework in a 24(2) hearing. THE APPLICABLE LAW, ANALYTICAL FRAMEWORK, S. 24(2) [ 109 ] The trilogy of cases in the Supreme Court of Canada released July the 17th, 2009, informed this analysis. They are: R. v. Grant 2009 SCC 32 ; R. v.

Harrison 2009 SCC 34 ; R. v. Suberu 2009 SCC 33 . Added to those cases, we must consider the analyses of the British Columbia Court of Appeal in cases provided to me by counsel, and the citations have been articulated on the record. For ease of

reference, I will simply refer to them in their context in the particular case books. They are: R. v. Reddy 2010 BCCA 11; R. v. Ling 2009BCCA 70; R. v. Caron 2011 BCCA 56; R. v. Dhillon 2010 BCCA 254; and most recently, R. v. Bacon 2012 BCCA 323. [110] The majority, in Grant, explained that the analysis was moving away from the confined approach set out by the Collins/Stillmanframework from R. v. Collins (SCC), 1987 1 SCR 265 and R. v. Stillman (SCC), 1997 1 SCR 607. InGrant, at paragraph 65, the court clearly set that out.

It also defined for all trial judges and appellate courts that it is the long view thatinforms the analysis. In paragraph 68, the court defined the phrase "bring the administration of justice into disrepute" in this way: The phrase "bring the administration of justice into disrepute" must be understood in the long-term sense of maintaining the integrity of,and public confidence in, the justice system. Exclusion of evidence resulting in an acquittal may provoke immediate criticism. But s.24(2) does not focus on immediate reaction to the individual case.

Rather, it looks to whether the overall repute of the justice system,viewed in the long term, will be adversely affected by admission of the evidence. The inquiry is objective. It asks whether a reasonableperson, informed of all relevant circumstances and the values underlying the Charter, would conclude that the admission of the evidencewould bring the administration of justice into disrepute. [111] It is clear, in my view, from the language of that paragraph, that the inquiry is objective.

The test is whether a fully informed,reasonable person in our society would conclude that the admission of the evidence would bring the administration of justice intodisrepute.

It is, therefore, important to analyze and to explain in reasons that this is a circumstance where a trial judge is faced with anapplication for exclusion, and the majority in Grant has set out the new test. a court must assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct [admission may send the message the justice system condones serious statemisconduct], (2) the impact of the breach on the Charter-protected interests of the accused [admission may send the message individual rights countfor little], and (3) society's interest in the adjudication of the case on its merits. [112] This three-fold test is different from the Collins/Stillman framework and broadens the assessment, requiring the court to consider"all the circumstances" within the analysis of each of the three factors.

What really transpires is that in each of those three settings thecourt is to engage in a balancing between the individual rights analysis and the State's interest in the truth-seeking function of trials. Iwill deal, first, with the analysis in Grant of the seriousness of the Charter-infringing state conduct. [113] A major factor under this heading is the nature of the police misconduct. Was it deliberate? Was it flagrant? Was it blatant? What was its impact on the accused's rights?

The more severe, deliberate, blatant and egregious, the greater the need for the courts todissociate themselves from that conduct by excluding evidence linked to that conduct in order to preserve public confidence in andensure state adherence to the rule of law: see Grant paragraph 72. This evaluation of the state conduct is aimed at the long-termpreservation of the public confidence in the rule of law and investigatory and trial processes. [114] It is not about punishing the police. It is not about deterrence of Charter breaches.

It is a continuum reflecting inadvertent orminor violations at one end and wilful or reckless disregard at the other. "Good faith" conduct by the police is not equated with wilfulblindness or negligence or ignorance by the police of Charter standards. Inexperienced officers may not, because of their lack ofknowledge or training, justify breaches because they did not know established Charter standards; therefore, deliberate police conduct inthe face of entrenched Charter standards would tend to support exclusion of the evidence.

Charter-infringing conduct demonstrating apattern or series of Charter breaches would tend to support exclusion (see Grant paragraph 75, R. v. Ling paragraph 53). Impact of the Breach on the Charter-Protected Interests of the Accused [115] The assessment and evaluation under this branch of the test calls for an evaluation of the extent to which the breach underminedthe interest protected by the right infringed. Was constrictive evidence obtained? How was the evidence obtained? Was the breachintrusive, profoundly intrusive, or minimal in nature? Was the dignity of the person affected involved or engaged?

The court is to lookto the interest infringed and the degree to which the violation impacted on those interests (see Grant paragraph 77). Society's Interest in an Adjudication on the Merits [116] The question under this heading may be framed as whether the truth-seeking function of the criminal trial process is betterserved by admission or exclusion. Again, all the circumstances must be considered in the analysis. Is the evidence inherently reliable orunreliable? How significant is the evidence to the trial? How important is it to the Crown's case?

Questionable evidence or evidence ofquestionable reliability is more likely to bring the administration of justice into disrepute where it forms the entirety of the case for theCrown.

On the other hand, the exclusion of highly reliable evidence may more negatively impact on the repute of the administration ofjustice where it effectively leads to acquittal (see Grant paragraph 83). [117] At this point, one can see the tension between the state's interest in the investigation in ferreting out a crime and bringing beforethe court highly reliable evidence which it may use for the purposes of proving a case against the alleged offender. In balance, it would

appear that society, in viewing that issue, would be more prone to lean to inclusion than to exclusion. The seriousness of the offence must also be considered, having regard to the balancing factors under each of the headings. That is disclosed in Grant at paragraph 84.

But when one looks, as well, to paragraph 139 in Grant and considers the directions of Madam Justice Saunders in Bacon at paragraphs 38-39 , it would appear that this becomes a neutral factor in the assessment of the case. [ 118 ] Earlier cases have talked about this as being of some significance in the analysis, because one would think that in a serious case involving serious crimes of violence, that the repute of the administration of justice would be adversely affected where reliable evidence being excluded would lead to an acquittal.

However, when one looks at the balancing of the rights, it is apparent that in serious cases which would, because of their nature, have serious penal consequences on the accused if individual rights have already been breached, it would be double the harm to included the evidence at the trial, even though the truth-seeking function of the court would be borne out. Determination [ 119 ] It is my view, having regard to each of the factors set out above, that the court has also directed that the trial judge is to weigh all of the circumstances and deter

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